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originally posted by: OpinionatedB
The title of the quoted article is No, Israel Does Not Have the Right to Self-Defense In International Law Against Occupied Palestinian Territory.
Many people are saying that Israel has the right to go into Gaza and bomb them into oblivion, as a measure of self defense. This article clearly states they do not. What Israel has, under international law, is the right to use it's police powers with rare use of militarized force as measures of self defense, but the self defense measures themselves cannot take the form of warfare since the warfare was concluded and has rendered Gaza and the West Bank an occupied territory of Israel.
Israel thus, under international law has the duty to protect Palestinian citizens as well as has the duty of restoring order and ensuring a normal day to day life for the Palestinian citizens. Israel is doing none of this.
Occupation Law prohibits an occupying power from initiating armed force against its occupied territory. By mere virtue of the existence of military occupation, an armed attack, including one consistent with the UN Charter, has already occurred and been concluded. Therefore the right of self-defense in international law is, by definition since 1967, not available to Israel with respect to its dealings with real or perceived threats emanating from the West Bank and Gaza Strip population. To achieve its security goals, Israel can resort to no more than the police powers, or the exceptional use of militarized force, vested in it by IHL. This is not to say that Israel cannot defend itself—but those defensive measures can neither take the form of warfare nor be justified as self-defense in international law. As explained by Ian Scobbie:
To equate the two is simply to confuse the legal with the linguistic denotation of the term ”defense.“ Just as ”negligence,“ in law, does not mean ”carelessness” but, rather, refers to an elaborate doctrinal structure, so ”self-defense” refers to a complex doctrine that has a much more restricted scope than ordinary notions of ”defense.“
Once armed conflict is initiated, and irrespective of the reason or legitimacy of such conflict, the jus in bello legal framework is triggered. Therefore, where an occupation already is in place, the right to initiate militarized force in response to an armed attack, as opposed to police force to restore order, is not a remedy available to the occupying state.Source
The source is a Palestinian source that I have used, but the argument is quite valid. The argument is, in an occupied territory the occupiers cannot use all out warfare, but only policing efforts to restore order in the occupied territory. This is a valid argument under international law.
Since 2007, when Dugard offered up his authoritative calculus, much has changed, but none of these changes support the contention that Israel does not exercise effective control over Gaza. Sara Roy, in a recent Boston Globe article, offers examples of how, despite the absence of a military administration, Israel continues to control what happens “on the ground” on a daily basis. She writes:
Israeli-imposed buffer zones—areas of restricted access—now absorb nearly 14 percent of Gaza’s total land and at least 48 percent of total arable land. Similarly, the sea buffer zone covers 85 percent of the maritime area promised to Palestinians in the Oslo Accords, reducing 20 nautical miles to three, where waters are fouled by sewage flows in excess of 23 million gallons daily.
Assaf Kfoury, who traveled into Gaza as part of an academic delegation in October, summarizes some of the well-documented elements of Israel’s ongoing effective control. He writes:
The Gaza Strip is hemmed in from all sides. The Israeli naval blockade prevents all transport of people and goods from the sea. The land border with Israel is tightly sealed. Rafah at the southern edge of the Strip…is the only and hard way in and out, via Egypt, for the vast majority of Palestinians. Israel controls the Erez crossing, strictly monitoring entry of international aid workers, journalists, and a trickle of Palestinians…Over past decades and years, Palestinian industry has been systematically sabotaged in favor of Israeli industry, including industry (or whatever is worthy of the name) in Gaza, whose economy is essentially controlled by Israel. Most alarming is a recent UN report, Gaza in 2020, which suggests that Gaza will no longer be a “livable place” in 2020.
Kfoury also offers some examples of Israel’s effective control that he witnessed firsthand.
Turning one’s back to the misery inland, and looking out to the Mediterranean and its shimmering waters, should normally be a soothing escape, but not in Gaza. Our mornings over breakfast at the hotel were punctuated by gunfire from somewhere off shore. These were not dynamite sticks that kids or poor people detonated underwater to collect large quantities of stunned fish, as I initially thought, but gunfire from Israeli patrol boats warning fishermen to stay inside the three nautical-mile limit. On the morning we left the Strip, we were told that two fishermen who went beyond the limit were killed the day before.
In response to Israel’s “Operation Protective Edge,” ISIS released a statement declaring that they were simply too busy killing fellow Muslims to bother with a war on Jewish people. “The greatest answer to this question is the Qur’an, where Allah speaks about the nearby enemy–those Muslims who have become infidels–as they are more dangerous than those which were already infidels,” explained an ISIS spokesman on Twitter, who was not identified.